(영문) 서울중앙지방법원 2019.5.9. 선고 2018고합1129 판결

The information about the accused shall be disclosed and notified for five years (Provided, That the summary of the sex offense disclosed and notified shall be limited to the injury of quasi-rape in the judgment).

An employment restriction shall be ordered to a child or juvenile-related institution, etc. for seven years.

A person subject to an order to attach an electronic device shall be placed on probation for three years, and matters to be observed in the attached Form shall be imposed.

The request for the attachment order of this case is dismissed.

Reasons

Criminal facts and facts constituting the probation order

【Criminal Power】

On October 24, 2013, the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendants") were sentenced to a suspended sentence of two years in imprisonment with prison labor for the crime of indecent act by force at the District Court for the last four months.

【Criminal Facts】

1. Quasi-rape injury;

피고인은 2018. 8. 21. 01:30경 회사 대표이사 수행기사로 근무하며 자신이 운행하는 회사 소유 B 제네시스 EQ900 승용차를 운전하던 중 서울 중구 C 빌딩 앞 버스정류장에서 택시를 타기 위하여 서 있는 피해자 D(가명, 여, 24세)에게 '같은 방향이면 태워 주겠다'고 말하여, 만취하여 피고인의 차량을 택시로 오인한 피해자를 조수석에 타게 하였다. 계속하여 피고인은 피해자가 목적지를 말한 직후 잠이 들자 같은 날 02:00경 위 목적지가 아닌 서울 용산구 E에 있는 F공사 현장 도로 갓길로 가 차량을 세운 뒤 조수석 의자를 뒤로 밀어 젖히고 조수석으로 이동해 피해자의 입술에 입을 맞추고 목과 귀를 만지고 입으로 빤 다음 손으로 피해자의 팬티를 벗기고 성기를 피해자의 음부에 집어넣어 피해자를 간음하고 이로 인하여 피해자로 하여금 질 하부와 자궁경부 하부의 출혈 및 질 내벽 부어오름, 오른쪽 팔의 멍, 극심한 두통 및 호흡곤란 등 치료일 수 미상의 상해를 입게 하였다.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's state of non-performance to resist and caused injury.

2. Embezzlements of lost possession;

After the Defendant committed the crime described in paragraph (1) on August 21, 2018, around 02:30, the Defendant driven the vehicle described in paragraph (1) into ○○○○○○○, Seoul, the residence of the said victim, and did not take measures such as acquiring one driver’s license, one resident registration certificate, one 50,000 won per 50,00 won per 10,000 won per 50,00 won per 1,50 won per 1,00 won per 1,00 won per 1,00 won per 1,000 won per market value per 1,00,000 won per 20,000 won per 1,000 won per 1,00,000 won per market value, and one cellular phone cell phone card in the case and one 1,000 won per 1,000 won per market value.

Accordingly, the defendant embezzled the property that has been separated from the possession of the victim.

[Fact of Grounds for Probation Orders]

As indicated in the judgment below, the Defendant again committed a sexual crime even though he had the record of punishment for a sexual crime, and the records of the instant crime and the Defendant’s sexual crime are all committed against unspecified women in view of the crime target, the circumstances and methods of the crime, the motive of the crime, the character and conduct of the Defendant, the character and conduct of the Defendant, and the environment.

Summary of Evidence

1. Entry of the defendant in part of the protocol of the first preparatory hearing;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Each police statement made to D;

1. Statement of damage from D;

1. Protocols of seizure and list of seizure (Evidence Nos. 38, 39);

1. Investigation reports (the CCTV search and investigation into CCTV related to this case), investigation reports (the execution of warrant of seizure and second seizure), investigation reports (the last passive of the victim), investigation reports (the confirmation of market price of damaged goods), and search data;

1. Seoul Central Government, a fisheries appraisal report and an appraisal report, and a report on the assessment of criminal injury;

1. The medical certificate for women in childbed and the medical certificate, the medical records for victims of sexual assault, and the details of G hospital treatment;

1. Names and photographs of the upper part of the body, victim's clothes, CCTV images of the crime prevention CCTV near the life-long metropolitan bus stop, CCTV images of the H, CCTV images taken at the entrance of the victim's residence, CCTV photographs at the golf shop, CCTV images taken at the entrance of the victim's residence, CCTV photographs of the suspect's back-proof photographs, each CCTV image, CD on the front part of the suspect, materials seized, photographs of the suspect's vehicle seizure site, etc., marks and photographs indicating the place of rape designated by the suspect, victim's moving pictures, CCTV images, CCTV images, and replies requesting cooperation from the victim;

1. Previous records of judgment: Criminal records, references to criminal records, investigation reports, records of the same type of crime, judgment, etc.;

1. The risk of recidivism of a sexual crime as indicated in the judgment: (a) the following circumstances recognized by the above evidence and the written investigation before the claim (i.e., the Defendant again committed the instant crime despite the fact that the Defendant had been punished for a sexual crime; (b) the sexual crime committed by the Defendant; and (c) the crime committed by the Defendant was committed against unspecified women; and (d) the Defendant’s comprehensive risk of recidivism was assessed as the result of the assessment of the risk of sexual offenders against the Defendant; and (e) the assessment of the risk of sexual offenders against the Defendant; (c) the Defendant’s comprehensive risk of recidivism was assessed as the intermediate; (d) the investigator who conducted an investigation before the claim against the Defendant presented the opinion that probation, etc. after the execution of the sentence; and (e) the investigator who conducted the investigation before the request for a sexual crime was in need of probation

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 301 and 299 of the Criminal Act (the point of causing quasi-rape, the choice of limited term) and Article 360(1) of the Criminal Act (the point of possession Embezzlements and the choice of imprisonment)

1. Aggravation for concurrent crimes;

The former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (within the scope of the sum of the long-term punishments prescribed in the crime of causing quasi-rape heavier punishment)

1. Order to disclose and notify;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; the main sentence of Article 49(1)2 and the main sentence of Article 50(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An employment restriction order;

The proviso to Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 15452, March 13, 2018), the main sentence of Article 56 (1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018)

1. Article 21-3 (2) and (1), Article 21-2 subparagraph 1, Article 21-4, and Article 9-2 (1) 3 and 4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders subject to the probation order and matters to be observed (where a request for an attachment order is dismissed, and the probation order is deemed necessary, the probation order shall be issued ex officio);

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Non-compliance Order (this shall not apply to cases where an order is issued to a defendant on probation and completion of sexual assault treatment programs is imposed due to the matters to be observed, and

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The mental and physical damage suffered by the victim by the crime of this case is a minor and does not constitute an injury to the crime of quasi-rape.

2. Determination

A. Relevant legal principles

In the crime of injury resulting from rape, injury refers to a change in the victim’s health condition and causing a disturbance to the physiological function or living function, and includes not only physical function but also mental disorder. This should not be objectively and uniformly determined, but also be determined on the basis of specific physical and mental conditions, such as the victim’s age, gender, and physical strength (see, e.g., Supreme Court Decision 2015Do3939, Jul. 11, 2017). In the event that the injury resulting from rape is extremely insignificant and that there is no need for treatment, it does not constitute injury as referred to in the crime of injury resulting from rape in a case where it is naturally cured and there is no difficulty in daily life.

However, even in a case where the scambling of an injury is apparent, and where continuous treatment is needed to recover from such pain and wound, it does not constitute a minor injury that does not constitute a crime of rape without permission (see Supreme Court Decision 2011Do17721, Apr. 13, 2012). This also applies to the crime of injury resulting from quasi-rape.

(b) Fact of recognition;

According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

1) On August 21, 2018, the date of the instant case, the victim received medical treatment with her father and her mother at the I Hospital around 18:50. At that time, the victim complained of the pain (34 pages of the evidence record), and the doctor J who provided medical treatment with the victim prepared a diagnosis statement stating that the victim shall have a small amount of her part of her part of her part of her part of her part of her part and that the her part of her part of her part of her part of her part of her part of her part and that the whole her part

2) On the photograph taken by the police around 20:00 on the same day, there remains a hole of the victim’s right arms and a flag florg florg flor (Evidence Records 26-30 pages).

3) From around 21:57 on the same day, the victim stated that “I need to look into and treat the same in so far as I are subject to an investigation by the police once,” and stated that “I will do less than time” even if I are investigated by the police two times from August 27, 2018 to August 30, 2018.

4) After having interviewed the victim on September 6, 2018, K Specialized in Assessment of Criminal Damage: (a) had serious pain and inconvenience caused by the instant crime due to the symptoms of bad flag and the symptoms of bad flag in the form of the instant crime; (b) had experienced severe symptoms of eating and bath-out, hair, gropical, snow, and WIG disorder for at least one week after the instant case; and (c) still has been showing these symptoms. The victim shows symptoms of bad flag disorder, and following the instant case, the victim was suffering from self-reflag and self-confluence as well as emotional stability. In addition, the victim submitted a report on assessment of criminal damage stating that "where the physical symptoms or psychological pain that the victim is currently suffering for a long time, professional treatment is required (Evidence record 356 pages)."

5) On September 17, 2018, L of the Psychological Counseling Institute, after consulting the victim on September 17, 2018, submitted an opinion that “the victim’s apprehensions and depressions need to be continuous psychological counseling due to a serious concern” (Evidence No. 444 pages).

C. Specific determination

Comprehensively taking account of the following circumstances that can be recognized by the aforementioned facts in light of the legal doctrine as seen earlier, it is reasonable to view that the symptoms of the victim, such as the blood transfusion from the lower part of the Defendant and the lower part of the lower part of the lower part of the instant crime, the fall under the injury caused by quasi-rape. Accordingly, the Defendant and the defense counsel’s assertion is not acceptable.

1) After committing the instant crime, the victim constantly complained of a very serious mental suffering.

Considering the fact that the 20th female victim was sexually committed as stated in the facts constituting a crime in the judgment of the criminal defendant, it is reasonable to view that the mental suffering suffered by the victim is merely a temporary stress suffered by the victim, or cannot be deemed to have been committed solely on the symptoms that all the victims suffered inevitably, and that it causes harm to the physiological function or life function.

2) On the day of the instant crime, the victim complained of a severe pain during the police investigation and hospital treatment, and the above pain appears to continue to exist for at least one week. Also, according to the photographs taken on the day of the instant crime, the victim’s right side part of the right side part of the victim appears to be relatively obvious. In light of the above, it cannot be said that the wife suffered from the victim does not interfere with daily life and is extremely minor enough to recover nature within a short period of time, or is likely to normally occur in sexual intercourse in accordance with an agreement, and it is reasonable to deem that the above wife changed the victim’s health condition to a poor condition and interfere with the physiological function and the function of life.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for up to 5 years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Crimes of causing quasi-rape;

[Determination of Punishment] In the event of a result of bodily injury to a sex offense, the person who is at least 13 years of age or older shall be injured or injured.

[Special Sentencing]

[Recommendation and Scope of Recommendation] Basic Field, 4 years to 7 years of imprisonment

(b) Crimes of embezzlement of stolen objects: Whether the sentencing criteria are not set;

(c) Scope of recommending punishment based on the standards for handling multiple crimes: At least four years of imprisonment (limited to the lowest limit of the recommended sentencing range for crimes for which the sentencing criteria are set, since crimes for which the sentencing criteria are set and crimes for which no sentencing criteria are set are concurrent crimes in the former part of Article 37 of the Criminal

(d) Scope of the recommended sentences that are modified by the applicable sentencing guidelines: Imprisonment with prison labor for not less than five years (in cases where the lower limit of the range of sentences recommended by the sentencing guidelines is inconsistent with the lower limit of the applicable sentencing guidelines by law, the lower limit of the applicable sentencing standards by law); and

3. Determination of sentence: Five years of imprisonment; and

The crime of this case was committed by the victim who was under the influence of alcohol and was unable to resist because of misunderstanding the defendant's vehicle to the si. The victim was on board, and the victim was sexual intercourse and injured during the course of the crime. The crime of this case was committed against an unspecified female at the bus stop, which is a public place. It is highly likely that the crime of this case is committed against an unspecified female at the bus stop. The crime of this case was committed against a high possibility of criticism in that it is a crime that threatens public safety. The victim suffered from external stress disorder, such as paralysis, paralysis, paralysis, snow, and the symptoms of water surface disorder, etc. due to the crime of this case, and thereafter, suffered from mental distress to the extent that it is difficult to lead a daily life due to the occurrence of depression, apprehension, emotional stability, and self-harm. The victim is trying to severely punish the defendant.

However, the defendant's crime of quasi-rape and the crime of embezzlement of stolen objects are all recognized, while considering favorable circumstances in which the defendant expressed his/her intent to commit the crime against the victim by repeating the trial process, and taking into account other factors of sentencing as stated in the arguments of this case, such as the defendant's age, character and conduct, environment, motive, means and methods of committing the crime, circumstances after committing the crime, etc., as stated in the text.

Registration and submission of personal information

In a case where a conviction becomes final and conclusive on the crime of quasi-rape in the judgment, the defendant is a person subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus, the defendant is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act. The period of registration of personal information of the defendant is 20 years pursuant to Article 45(1)2 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. In full view of the crime of quasi-rape and bodily injury in the judgment that causes the registration of personal information, the crime of quasi-rape in the judgment that causes the registration of personal information, the nature of the crime, and the severity of the crime, the period of registration of personal information in this case is deemed not necessary to be specified as a short-term

Judgment on the request for attachment order

1. The summary of the request for attachment order;

As a result of the evaluation of the risk of recidivism of the Korean sex offender (KSORAS), the defendant committed more serious sexual crimes regardless of the previous punishment records, such as committing the crime committed by using the vehicle, and as a result of the evaluation of the degree of risk of recidivism of the sex offender in the Republic of Korea, the "half of the risk of recidivism by the mental characteristics", and the "half of the risk of recidivism by the mental disorder characteristics" in full view of the following: (a) the defendant committed sexual crimes on more than two occasions and has been dismissed from the prosecution as a result of the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts at Open Place).

2. Determination

A. The risk of recidivism of a sexual crime under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is insufficient enough to repeat the crime. The risk of recidivism of a sexual crime refers to a probable probability that the person subject to the request to attach an electronic tracking device may injure the legal peace by again committing a sexual crime in the future. The existence of the risk of recidivism of a sexual crime ought to be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the request to attach an electronic tracking device, the motive, means, circumstances after the crime, and outline of the crime. Such determination ought to be based on the time of the judgment inasmuch as it is a constructive determination in the future (see, e.g., Supreme Court Decisions 2010Do7410, 2010Do4444, Dec. 9, 2010). Moreover, the risk of tracking an electronic tracking device under the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is much more than the degree of physical freedom and privacy, etc.

B. In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, Defendant’s age, family relationship, background of crime, means and method, etc., it is difficult to readily conclude that the evidence submitted by the prosecutor alone is highly probable to commit a sex crime again in the future to the extent that the attachment of an electronic tracking device is necessary, in addition to ordering the Defendant to be placed on probation

1) Although the defendant has a record of being punished for the crime of indecent act by compulsion in 2013, there is no record of punishment for a sexual crime except for that.2)

2) As a result of the evaluation of the degree of risk of sexual offenders in Korea (KSORAS), the risk of recidivism was assessed as an intermediate level, and the risk of recidivism was assessed as an intermediate level due to qualitative characteristics of mental disorder (PC-R), and the degree of risk of recidivism was also assessed as an intermediate level. As a result of the examination, the degree of rape coverage was also assessed as having no cognitive distortion of sexual assault, such as the degree of scores on each field is lower than the average scores of male students, which are the groups with which the points for each field were determined.

3) The sentence imposed on the Defendant, the registration of personal information, the order to disclose and notify personal information, the restriction on employment and probation order on institutions related to children and juveniles, etc. are likely to have considerable effect on the prevention of recidivism and the correction of character and behavior of the Defendant.

3. Conclusion

Therefore, the request for the attachment order of this case is without merit, and it is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

Judges

Judges and Judges of the Court

Judge Song In-bok

Judges Park Tae-soo

Note tin

1) The written indictment and the written application for an attachment order include two times the criminal records of the defendant. This is deemed to include the records that the defendant received a decision to dismiss the public prosecution in the case of violation of the Act on the Punishment, etc. of Sexual Crimes (Indecent Acts at Open Place). However, the above case is terminated by a decision to dismiss the public prosecution without substantive judgment. Thus, it cannot be included in the criminal records of the defendant’s same kind of crime. Accordingly, the above indictment was partially revised without changing the indictment to the extent that it does not disadvantage the defendant’s exercise of his/her right to defense.

2) The prosecutor stated that the Defendant was dismissed in the case of violation of the Act on the Punishment, etc. of Sexual Crimes (Indecent Acts at Open Place). However, such stated facts cannot be included in the Defendant’s records of sexual crime as seen earlier. The offense of violating the Act on the Punishment, etc. of Sexual Crimes (Indecent Acts at Open Place) does not constitute a sexual crime defined in Article 2 subparag. 2 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.